Week 117: The EPA Finds a Clean Water Act Loophole . . . and Widens It

Otherwise, it was just an ordinary week of secret meetings and betrayals of the public interest.

April 19, 2019

Welcome to our weekly Trump v. Earth column, in which onEarth reviews the environment-related shenanigans of President Trump and his allies.

Photo illustration: Virginia Lee for onEarth

Chain of Fools

The U.S. Environmental Protection Agency announced this week that it would not regulate pollution in lakes, waters, and streams if that pollution had first traveled through groundwater. Groundwater, the EPA argued, magically “breaks the causal chain” between the pollution source and the polluted water, which brings the pollution outside the purview of the Clean Water Act. (I added the “magically” part.)

To see why this is a hot pile of nonsense, consider the following scenario. A coal-fired power plant leaves its gigantic mound of coal ash—the toxic leftovers of coal combustion—in a place where rain eventually washes the silty waste into the water table. You don’t need a Ph.D. in hydrology to know what happens next. Since groundwater isn’t hermetically sealed off from the rest of the world, those pollutants eventually seep into lakes, rivers, and streams. So, why should that route of pollution be treated differently from coal ash that goes directly into a body of water?

Trump’s EPA claims that this is “the only reading of the Clean Water Act,” but Administrator Andrew Wheeler might be surprised to meet a clutch of federal judges who disagree. Both the Fourth and Ninth Circuits of Appeals have concluded that, although the Clean Water Act does not directly regulate groundwater, there’s nothing in the law to prevent the EPA from regulating pollution that passes through groundwater on its way to waterways that are within the Clean Water Act’s jurisdiction.

Prior administrations, both Democratic and Republican, have issued protections that assume the same. Far from adopting the most obvious interpretation of the law, the Trump administration’s pro-polluter reading is almost unique in its novelty.

The Supreme Court will ultimately rule on this issue, as a case concerning sewage in Maui has made its way onto the high court’s docket. Here’s hoping the justices recognize that laundering dangerous waste through groundwater shouldn’t free polluters from federal enforcement.

Another EPA Ethics Mess

Since 2002, the EPA has been concerned about the emissions from two outdated coal-fired power plants in Missouri. In 2011 the Obama administration formally accused Associated Electric Cooperative, Inc. (AECI), the owner of both plants, of failing to make required pollution control upgrades. At that point, the agency’s career enforcement staff should have been in full control of the matter until it was resolved. Career staff understand these cases better than anyone.

But when Trump came into office, AECI apparently thought it could get friendlier treatment from his political appointees. Rather than contest the allegations through the normal enforcement channels, documents obtained through a Freedom of Information Act request suggest the company sought and eventually received a back channel with disgraced former EPA administrator Scott Pruitt.

According to the newly obtained documents, Pruitt visited the aging Thomas Hill power plant in April 2017. After his public appearance, he met for 30 minutes with AECI’s CEO and other company officials. (Also at the meeting were the CEO of an industry group and an EPA official who had only recently left that industry group. Her attendance may have been a violation of her ethics pledge.)

This meeting was redacted from Pruitt’s public calendar, and another meeting between AECI and another EPA official was never listed in the first place, suggesting that the EPA knew both rendezvous weren’t aboveboard.

What followed? A series of internal EPA emails from political appointees to career staff, followed by some AECI emails hinting that the enforcement action that had been hanging over the company for six years was nearing a resolution.

The good news is that the matter still isn’t resolved. Perhaps Pruitt’s implosion and the subsequent departure of some of the characters involved in this drama disrupted the agency’s plans to let AECI off easy. But the entire dirty incident is an object lesson in why political appointees, especially in the Trump administration, shouldn’t get involved in enforcement actions. They don’t understand the law, they don’t understand the cases, and many of them used to work for the very people they’re supposed to be regulating.

Meetings? What Meetings? Oh, Those Meetings.

Newly confirmed Interior Secretary David Bernhardt once told lawmakers that he had only one calendar, and it was posted on the department’s public-facing website. This week the Interior Department acknowledged that those assurances were, as former—also disgraced—interior secretary Ryan Zinke might have said, “complete and utter bullsh*t.”

In fact, Bernhardt’s staff has been using a Google Doc, which is constantly being overwritten, to keep his personal calendar. Some of the overwritten meetings were with representatives from the fossil fuel and timber industries.

House Democrats are now looking into whether Bernhardt’s calendar tricks violated federal law, but it’s already pretty clear he hasn’t been entirely honest about the company he keeps. Officially only one week into the job, and Bernhardt’s already fitting right in with the Trump cabinet’s culture of holding secret meetings with industry—and getting caught.

Stop David Bernhardt

Stay up-to-date on Trump’s environmental antics by visiting NRDC’s Trump Watch or following it on Facebook or Twitter.

onEarth provides reporting and analysis about environmental science, policy, and culture. All opinions expressed are those of the authors and do not necessarily reflect the policies or positions of NRDC. Learn more or follow us on Facebook and Twitter.

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